Law and morality are like two sides of the coin of social order. They are distinct, but when nexus is formed between them, the impact is felt on social order. While the law has an element of bindingness and is what we present before the court, morals depend on the values placed on it to thrive.
Some scholars like Plato advocated at a time for the exclusion of law in the society since man is reasonable and knows good from bad, but we realise especially with recent happenings that man’s nature demands more than just knowing good from bad. If social order must be maintained, there must be some level of bindingness; this is what makes law different from morality.
However, these morals can be reinvented by incorporation into laws. When they are taken into cognizance in law making and bindingness attached to them, such moral is said to have been reinvented. For instance, we know it’s morally wrong to steal, but mere knowledge does little to maintain social order, so the law steps in and attaches sanctions, criminalizes theft or robbery. This way, it transcends from just a moral to being a law.
However, the potency of the law protecting morality has been tested by the societal vices happening around us. There have been increased occurrences of rape, domestic violence, police brutality and what have you. Questions have been raised as to where the problem stems from; is it a problem of the law not being able to protect morality or a more individualistic problem of moral degradation, or whether there are issues with the legal system and enforcement of available laws?, Where does the efficacy of the law stop and where does the will of man start?. The trend of events have revealed that the problem transcends the efficacy of the law and is inclining towards moral degradation and poor enforcement. Laws are made but ultimately they are broken. It more a question of the strength of our moral system.
Anchor: How does Nigerian laws defines rape?
Rejoice kalu:Section 357 of the Criminal Code Act (CCA)2004 defines rape “as the unlawful carnal knowledge of a woman or girl without her consent or with her consent if it is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband.”
This unlawful carnal knowledge is defined in section 6 of the CCA as “carnal connection which takes place otherwise than between husband and wife.” (By implication, marital rape is not recognised under the Criminal code. The offence of rape is punishable upon conviction, by life imprisonment with or without caning- section 358 of CCA, while an attempt to rape is punishable by 14 years imprisonment, with or without caning-section 359 of the CCA.
However, under the Criminal Code, a child below 13 cannot consent, thus any unlawful carnal knowledge of such child is felony punishable by life imprisonment and an attempt to do so punishable by 14 years imprisonment – section 218 of the CCA
Rejoice kalu: This is basically the same with the provision of the penal code except from a few discrepancies. Section 282(1)(e) of the penal code provides that unlawful carnal knowledge of a child below 14 years with or without consent is tantamount to rape and section 282(2) of the Penal Code expressly states that sexual intercourse by a man with his wife is not rape, unless she has not attained the age of puberty.
We can see the loopholes in these laws;
1. Marital rape is not recognised
2. The rape of males is also unacknowledged.
The definition of rape is not encompassing in terms of areas of penetration unlike the Violence Against Persons Prohibition Act 2015 which we shall look into.
The penal code does not acknowledge the children in child marriages (which is rampant in the north) who although have attained puberty, have not attained the age to grant informed consent.
Rejoice kalu: Under VAPP Act, rape is punishable by life imprisonment-section 1(2) of the VAPP Act, where the offender is below 14, a maximum of 14 years imprisonment. And where it is a gang rape, a minimum of 20 years imprisonment for each without an of fine- section 1(2)(b)of the VAPP Act, 2015 and the court shall grant compensation for the victims as it deems fit.
At least, this Act recognises both sexes as potential victims.
Rejoice kalu: The Violence Against Persons Prohibition (VAPP)Act 2015 which is more elaborate in it’s definition applies only in the Federal capital territory and is binding on only states that adopt it. Section 1(1) of the Act defines rape as “the intentional penetration of the vagina, anus or mouth of another person with any other part of his body or anything else without the consent of the other person or with consent where such consent is obtained by means of threats or intimidation of any kind or by fear of harm or by means of false or fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.”
Rejoice kalu: The Child Rights Act (CRA), 2003 is more child protection specific. According to section 277 of the CRA, the age of majority is the age at which a person attains 18 years, therefore any person who is yet to attain 18 years is a child. Section 31 of the CRA, provides that No person shall have sexual intercourse with a child. Contravention of this section is tantamount to rape and the offender will be guilty of felony punishable by life imprisonment – section 31(2) CRA. Note that there is no question of consent, once the victim is a child (under 18 years) according to the Act and ignorance of the victims age is no excuse – section 31(3)(b) CRA.
However, this Act is only applicable in the states that adopt it. Seventeen years after, the states in the Northern Region are yet to adopt the Act. Unsurprisingly, because it is against most of their legalised child abuse practices like child betrothal and marriage – section 21 and 22 of the CRA. And sadly, nothing has been done about it so the children in the north are sidetracked from the protection the Act offers.
Rejoice kalu: From the various statutory provisions, it is evident that rape is essentially non-consensual sexual intercourse with another person and where there is consent, such consent is gotten under duress or deceitfully and is thus invalid. For the sake of rape apologists who consistently come up with excuses for the vile act and canvass the notion of implied consent through the dressing and any disposition of the victim, there is no such thing as implied consent under the law as regards the offence of rape.
The essential characteristics of consent under our laws include:
1. It must be express and emphatic.
2. It must be freely given.
3. It must be granted consciously, not under the influence of any substance.
4. It must be informed.
5. It must be specific; consent to kiss another is not consent to have carnal knowledge of such person.
6. It can be withdrawn
The victim’s No must be respected as he or she is individually autonomous.
Anchor: What has been the response of our laws to the rising rape cases in the country?
Rejoice Kalu: As noted earlier, our laws have loopholes that need to be addressed, as well as its problem of disparity and the laxity with which some of these cases are treated. A recent report showed that from January to May there was a total of 717 reported cases of rape in the country (these are just the reported ones). That’s an average of 5 victims per day, you would ask how many have been prosecuted. Our rape prosecution record as at 2017 had only about 65 cases in a country where thousands are raped annually with just a few in favour of victims because of the difficulty to prove the crime. These factors as well as the psychological issues that follow the act has made a lot of victims afraid to speak up.
Anchor: The child Right Act is yet to be domesticated by a number of states, does this bother you?
Rejoice kalu: As was stated earlier, states in the northern region are yet to adopt the Child Rights Act seventeen years after its enactment. Contrary to what many might think, it is not out of ignorance but selfishness as the provisions of the CRA would erode a lot of legalized abuse on children there,the most prominent of which is child marriage. So far, nothing has been done as the fate of the protected group remains the same. They are been sidetracked and deprived of the protection accorded to children in other regions. Recently, we heard of a senator who married a 13 year old Egyptian girl. Though she’s not a Nigerian, it still goes a long way to validate the vile practice and until something is done, these protected group remains sidetracked.
Anchor: What factors are responsible for the widespread cases of rape in our communities?
Rejoice kalu: There are a lot of factors involved, from trans-generational factors to societal factors. There have been clamourings on the media about the need to lay strong moral foundations at home, laying claim that it’s a problem of one’s background, but it transcends that. Man naturally is bound to react to the happenings around him, the whole system is facing moral decadence and if it must be dealt with, it has to be from all the sources including homes, school, media. Everywhere is polluted and we can’t give what we don’t have. There might not be a curative solution, but it might help to lay strong moral foundations. Ultimately, the issue of morality is individualistic, we must make conscious effort to do better.
About the Author
Kalu Rejoice Chioma is a law student of the University of Nigeria. She has interests in corporate law, human rights, intellectual property law, public speaking, research and advocacy, and a strong desire to rise to the best of her abilities in the legal world and beyond.
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